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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JACOB DARRELL TYRE, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2017-1001 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) JAN – 2 2020 JOHN D. HADDEN SUMMARY OPINION CLERK LEWIS, PRESIDING JUDGE: Appellant, Jacob Darrell Tyre, was tried by jury and found guilty of Count 1, child abuse, in violation of 21 O.S.Supp.2014, § 843.5(A); and Count 2, child neglect, in violation of 21 O.S.Supp.2014, § 843.5 (C), in the District Court of Tulsa County, Case No. CF-2015-4200. The jury sentenced Appellant to eight (8) years imprisonment and a $5,000.00 fine in Count 1; and twelve (12) years imprisonment and a $5,000.00 fine in Count 2. The Honorable Doug Drummond, District Judge, ordered the sentences served consecutively and suspended the fines.1 Mr. Tyre appeals in the following propositions of error: 1 Appellant must serve 85% of his sentences before he is eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1 (14). 1. By overtly conceding Appellant’s guilt to Count One, defense counsel deprived Appellant of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 20 of the Oklahoma Constitution; 2. Prosecutorial misconduct deprived Appellant of the right to a fundamentally fair trial; 3. Portions of Dr. Baxter’s testimony were improper because the testimony merely told the jury what result to reach. Appellant argues in Proposition One that defense counsel conceded his guilt of child abuse in Count 1 without previously consulting him and obtaining his consent, in violation of the right to effective assistance of counsel. Appellant filed an application seeking an evidentiary hearing on this claim, attaching an affidavit stating that trial counsel had failed to consult him or obtain his permission prior to conceding his guilt. The State argued in its appellate brief that by his silence at the time of the concession and afterward, Appellant acquiesced in counsel’s strategy and cannot now complain on appeal. This Court issued an order remanding for evidentiary hearing on its own motion under Rule 3.11(A), Rules of the Court of Criminal Appeals, 22 P.S.Supp.2018, Ch. 18, App. We found that resolution 2 of the allegations called for additional evidence, even though Appellant’s affidavit had not established clear and convincing evidence of a strong possibility that trial counsel was ineffective, as necessary to warrant remand for an evidentiary hearing under Rule 3.11( (B). In this order, we directed the trial court to receive evidence and determine the following questions of fact and law: 1. Whether trial counsel conceded Appellant’s guilt to Count 1 in counsel’s statements to the jury during closing argument; and, 2. If counsel conceded guilt, whether trial counsel consulted with the Appellant about this strategy before closing argument; and 3. Whether trial counsel sought Appellant’s consent to this strategy before closing argument; and 4. Whether the Appellant gave his consent to, or acquiesced in, defense counsel’s concession strategy before closing argument. On April 22, 2019, the Honorable Doug Drummond conducted an evidentiary hearing. Appellant presented his own testimony, mostly amplifying the allegations of his affidavit, and rested. The State presented the testimony of trial counsel Brian Martin, who testified positively that he had consulted with Appellant concerning 3 the strategy of conceding guilt in Count 1, and that Appellant had reluctantly agreed with that strategy, even though he didn’t like it. On May 30, 2019, Judge Drummond filed with this Court his findings of fact and conclusions of law on the questions presented on remand. As permitted by the order of remand, both parties filed supplemental briefs following the evidentiary hearing. We now have a factual record and briefs adequate for review of Proposition One, and hereby direct the record on appeal supplemented with the evidentiary hearing transcript and exhibits, the trial court’s findings and conclusions, and the supplemental briefs. Based on the stipulations,2 testimony, and exhibits offered at the evidentiary hearing, Judge Drummond found on remand that: (1) trial counsel had conceded Appellant’s guilt on Count 1 during closing argument; (2) trial counsel had discussed the strategy several times with Appellant before closing argument; (3) trial counsel had sought Appellant’s consent to concede guilt before closing argument; and (4) Appellant had consented to, or acquiesced in, the concession strategy. 2 The parties stipulated, in answer to Question No. 1 on remand, that counsel conceded guilt in closing argument. 4 Though the testimony at the evidentiary hearing was conflicting on the main issues, we find that Judge Drummond’s credibility choices as the finder of fact and his conclusions of law are supported by the record. We therefore affirm Judge Drummond’s conclusion that Appellant was aware of counsel’s plan to concede and had either approved of the plan, or acquiesced in it, and cannot now obtain reversal based on counsel’s concession despite the lack of conclusive evidence of his explicit consent. Abshier U. State, 2001 OK CR 13, II 75-76, 80, 28 P.3d 579, 598; Florida U. Nixon, 543 U.S. 175 (2004). This is not a case where trial counsel usurped Appellant’s autonomous authority to control the ultimate objectives of the defense. McCoy U. Louisiana, 138 S.Ct. 1500 (2018). Reviewing trial counsel’s strategy to concede under the two- pronged deficient performance and prejudice standard of Strickland U. Washington, 466 U.S. 668, 687 (1984), we find that counsel’s plan to concede guilt in Count 1 was not unreasonably deficient. However, trial counsel was deficient in one important respect: As he admitted at the evidentiary hearing, he was unfamiliar at the time of trial with the pre-concession disclosure procedure 5 promulgated in Jackson v. State, 2001 OK CR 37, I 25, 41 P.3d 395, 400. Counsel thus failed to alert the trial court of his plan to concede, and failed to preserve a better record of advice to the client about the concession strategy, and of the client’s consent, before making a concession of guilt to the jury. This professional error made a post-trial attack on the concession strategy much more likely, and its ultimate resolution far more difficult. However, we find this error did not create any reasonable probability of a different outcome at trial. Proposition One is therefore denied. In Proposition Two, Appellant argues that prosecutorial misconduct denied him a fair and impartial trial. Because Appellant failed to object to the challenged comments at trial, we review for plain error only. Appellant must therefore show a plain or obvious error affected the outcome of the proceeding. Hogan U. State, 2006 OK CR 19, “I 38, 139 P.3d 907, 923. This Court will correct plain error when it seriously affects the fairness, integrity, or public reputation of the proceeding. Id. Relief will be granted for prosecutorial misconduct only where it rendered the trial fundamentally unfair, such that the jury’s 6 verdicts should not be relied upon. Roy U. State, 2006 OK CR 47, I 29, 152 P.3d 217, 227. We evaluate allegations of prosecutorial misconduct within the context of the trial, considering the propriety of the prosecutor’s actions, the strength of the evidence, and corresponding arguments of defense counsel. Mitchell U. State, 2010 OK CR 14, 91 97, 235 P.3d 640, 661. We will grant relief only where grossly improper and unwarranted argument affects a defendant’s rights. Id. We find no plain or obvious error in the prosecutor’s comments under these standards. Proposition Two is denied. Appellant argues in Proposition Three that a pediatrician’s expert testimony that the victim suffered abuse and neglect was improper because the testimony told the jurors what result to reach. Because this testimony drew no objection at trial, we review for plain error, as defined above. Expert opinion is admissible when it (1) is based on sufficient facts or data; (2) is the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. 12 O.S.2011, § 2702. An expert may also testify to an opinion on the ultimate issue, but may not simply tell jurors what result to reach. 12 O.S.2011, § 2704; Day U. State, 2013 OK CR 8, 11, 303 P.3d 7 295, 297. There is no plain or obvious deviation from these legal principles in the testimony challenged here. Proposition Three is without merit. DECISION The judgment and sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE DOUG DRUMMOND, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL BRIAN MARTIN ROBERT W. JACKSON 1331 S. DENVER P.O. BOX 926 TULSA, OK 74119 NORMAN, OK 73070 ATTORNEY FOR APPELLANT DECHERD C. THOMAS 716 E. DEWEY AVE. SAPULPA, OK 74066 ATTORNEYS FOR DEFENDANT SARAH MCAMIS MIKE HUNTER TANYA WILSON ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS SHERI M. JOHNSON 500 S. DENVER, STE. 900 ASST. ATTORNEY GENERAL TULSA, OK 74103 313 N.E. 21 ST STREET ATTORNEYS FOR THE STATE OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE 8 OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Result HUDSON, J.: Concur ROWLAND, J.: Concur 9

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